1968 P Cr (PLP)

Akhtar Kazi A.A.G. for the State. Date of hearing: 7th March 1968, The facts leading up to this criminal revision application are that on the 21 st of April 1967 the 10th day, of Muharram one Allahyar son of Nazar Muhammad filed a complaint at about 4‑10 p.m. at the Naushero Feroze Police Station, stating that deceased Ghulam Rasool Rind, accompanied by this complainant and others, had come to Naushahro Feroze to see the "Tazya" procession. In the Bazar and in front of the shop of one Pir Shamsuddin, they found several of their co‑villagers, with whom they had previous disputes, armed with hatchets. It was alleged that at the instigation of Pir Shamsuddin, nine persons attacked the complainant's party, in the course of which, Ghulam Rasool Rind received hatchet injuries, causing his death on the spot. Dildar Jatoi was also injured in an attempt to intervene for Ghulam Rasool Rind to intercede and separate the parties. After the report was lodged investigation was conducted by the Station, House Officer of the Naushahro Feroze Police Station, Mr. Alvi, but later on the investigation was transferred to Inspector Muhammad Pinjal of C. I. A. The contention of the applicant is that this investigation was biased in favour of Pir Shamsuddin, who deliberately collected evidence in his favour, specially as to Pir Shamsuddin's case that on the day of incident, he was, in fact, at Hyderabad, staying with his cousin Mr. G. K. Pir. the Judge of the Industrial Court, and that Pit Shamsuddin had filed a direct complaint before the Additional City Magistrate, Hyderabad (Mr. Jamaluddrn Abro) against one Dhani Bakhsh. A challan was ultimately submitted, in which Pir Shamsuddin was not shown as an accused person, but where Mr. G. K. Pir and Mr. Azizullah Memon, a retired District and Sessions Judge, Tharparkar and Mr. Hamza Khan Qureshi, District and Sessions Judge, Larkana were shown as witnesses on the point of alibi raised by Pir Shamsuddin. Seeing this set of circumstances Allahyar son of Nazar Muhammad filed a direct complaint, dated the 10th day of May 1967 in the Court of the learned Civil Judge and First Class Magistrate, Naushahro Feroze against Pir Shamsuddin and nine others, the grievance being that Pir Shamsuddin should be included as an accused person in respect of the murder of Ghulam Rasool Rind and the injuries of Dildar Jatoi, A preliminary enquiry was ordered, the order of the learned Civil Judge And First Class Magistrate, Naushahro Feroze, dated 16th day of June 1967, being as follows:‑‑ "This complaint is filed only because Pir Shamsuddin has not been challaned in spite of the fact that his name appears in F. I. R. I know that I have not to base this enquiry on Police papers, but all the same in a complicated case like this I must have Police papers before me at the time of examining witnesses of the complainant. It is ordered that Police papers must be available before I start examining witnesses of complainant. Call Police papers before next date of hearing write to S. P." On the same day, learned counsel for the accused filed an application, stating that, as the Court had ordered the preliminary enquiry for calling the Police papers, which have not been received, the matter may not proceed until the Police papers were received.

2. It may be stated here that in column 2 of the challan whereby the rest of the accused, except Pir Shamsuddin, were challaned in furtherance of the first report of the Naushahro Feroze Police, this Pir Shamsuddin was shown as one of the accused named in the First Report, who was not being challaned. An application was made in the course of the preliminary enquiry, and after the Police papers have been received, by Mr. Anwar Ahmed, counsel for Pir Shamsuddin under section 540 of the Criminal Procedure Code, requesting the Court to summon witnesses cited in the challan on the point of alibi of Pir Shamsuddin, on the basis of the names of the witnesses referred to earlier, and on the 18th of November 1967, the learned Civil Judge passed the impugned order, directing that the Investigating Inspector of C. I. A., Muhammad Pinjal and Pir Ghulam Hyder be summoned "for the just decision of the matter". After stating the facts of the case, the learned Civil Judge has stated that independently of the application, he had come to the conclusion that the evidence of Muhammad Pinjal was material for the purpose of determining whether or not he should issue process against Pir Shamsuddin, that the Police papers contain true copies of certain documents in respect of this Pir Shamsuddin being present at Hyderabad, and that as this Pir Shamsuddin was an old man and a respectable Zamindar process should not issue against him "in a post haste manner". The grievance against this order is that the learned Civil Judge did not have the jurisdiction to summon these witnesses as Court witnesses, as one of them was obviously a defence witness on the plea of alibi of Pir Shamsuddin and reliance was placed on Syed Wahid Bux Shah v. the State and another (P L D 1964 Kar. 314). The grievance of learned counsel Mr. Muhammad Memon is essentially and indeed solely against the examination of Mr. G. K. Pir, who, according to him, is a defence witness, and the conten tion is that although Courts have very wide powers to summon witnesses under section 540, Cr. P. C. Courts should use the powers only for the purpose of a just decision of the case, and not for the purpose pf advancing the case either pr the prosecution or of duo defence and that this High Court should, therefore, interfere in as revisional jurisdiction. Emphasis is laid on the fact that Pir Shamsuddin was shown as an accused person in. column 2 who was not challaned and that even though Mr. G. K. Fir is named as one of the prosecution witnesses in the challan he is in fact a defence witness on the plea of alibi of Fir Shamsuddin. I may state in passing that in a revision against aye impugned order, the learned Session Judge, Nawab shah, on the 7th of December 1967, dismissed the application of Allahyar on the ground that the learned trial Magistrate could exercise‑ powers under section 540, Cr, P. C. that this complaint would not suffer if the proposed Court witnesses were examined, and that the case of Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others (P L D 1967 Lah. 1045) applied to proceedings is the course of the trial, nut that the question under considera tion was whether at the stage of preliminary enquiry, the Court could exercise powers under section 540, Cr. P. C. or not.

3. Learned counsel for the State supporting the impugned order urges that a preliminary enquiry is not proceedings inter -parties, that under section 101, Cr. P. G it is necessary for the trial Magistrate to ascertain the truth or falsehood of the complaint against the person concerned, that no point of law was involved and the question was only of the exercise of powers under section 201, Cr. P. C. simpliciter the fears of the applicant complainant were without foundation. The relevant part of section 202; Cr. P. C. for purposes of determination of this application is as follows: "Any Magistrate . . . . . . . as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint . . . ."

4. There is no doubt that it is for the trial Magistrate during a preliminary enquiry to sift the truth and that his discretion for arriving at the truth on the record before it is unfettered but the further consideration in the peculiar circum stances of this case in the context of Muhammad Ashraf v. Zafar Muhammad alias Master Khaki Zaman and others is that even though justice has to he administered without fear or favour regardless of the parties, it should appear to have beers done arid, therefore, the Court concerned must nevertheless guard against any suspicion of the "assumption of the role either of a prosecutor or of acting in favour of the defence. The order of the learned trial Magistrate dated the 16th of June 1967, stated that it was necessary to have the Police papers to be made available to him. At the stage of the impugned order all the witnesses of the complainant had been examined in the preli minary enquiry. At that juncture the counsel for Pir Shamsuddin applied for examination of witnesses who are obviously only defence witnesses on the point of his alibi and had nothing to state for the complainant case. In that one respect the order to examine Pir Ghulam Hyder as a witness does appear to be unjustifiable and to savour as an act advancing the case of the defence setting it at motion at that stage. Process in law can only issue after a proper enquiry and in the interests of justice and on the ground that Inspector Muhammad Pinjal had made the final investigation and submitted the challan and that the papers of the investigation contained documents referring to the movements of Pir Shamsuddin on the day previous to and the day of the incident, in which this applicant was a complainant, his examination at that stage in a preliminary enquiry on the other hand was fully justified. A reference with advantage may also be made to the following observations of Farooqi, J., in Syed Wahid Bux Shah v. the State and another where section 202, Cr. P. C. and its purpose in law was under discussion: "The whole purpose of the preliminary inquiry under sec tion 202, Cr. P. C. 1898 is to avoid the issue of process to the accused person in a ht case, and it is not to be held as if it was a full‑dress rehearsal for the trial. If, therefore, the purpose of section 202 of the Code is to enable Magistrate to postpone the issue of process, how then can that purpose be allowed to be frustrated when the Magistrate decides to hold a preliminary inquiry in which he issues notice to the accused and "allows most of the things to be done which, properly, must wait until the issue of process. Therefore, though there may be no contravention of any specific provision of the Code it appears to be clear that it was not intended that in a preliminary inquiry, under section 202 of the. Code, the accused should be summoned by notice and allowed to have the prosecution witnesses cross‑examined and produce his own side of the case either orally or in writing. In the case the purpose of inquiry ostensibly was to determine whether process should be issued or not, and, therefore, the Magistrate did not act properly in permitting accused to be present by notice, allowing them to be represented by counsel and have the prosecution witnesses cross‑examined." These observations apply aptly to the facts of the present case in that it is not intended in a preliminary inquiry under section 202, Cr. P. C. that the accused should have the benefit of having the prosecution witnesses cross‑examined and to produce his own side of the case either orally or in writing, since the purpose of an inquiry under this section is ostensibly to determine whether the process should in justice be issued or not.

5. For these reasons, I hold that the learned trial Magistrate was justified in directing the examination before him of Inspector Muhammad Pinjal but not that of Pir Ghulam Hyder at that stage of the case. It is necessary, in these circumstances that I should exercise my revisional Jurisdiction to correct that error in the impugned order which I modify in these terms. Order accordingly.